Citation Nr: 22019989 Decision Date: 04/04/22 Archive Date: 04/04/22 DOCKET NO. 04-38 603 DATE: April 4, 2022 ORDER 1. From September 1, 2008, until May 21, 2010, a total disability rating based on individual unemployability (TDIU) is granted. 2. From September 1, 2008, until May 21, 2010, statutory housebound special monthly compensation is granted. REMANDED An initial increased rating in excess of 10 percent prior to November 5, 2007, for bilateral tinea pedis is remanded. FINDINGS OF FACT 1. Giving the Veteran the benefit of the doubt, from September 1, 2008, until May 21, 2010, the Veteran's service-connected bilateral tinea pedis precluded him from being able to secure or follow substantially gainful employment. 2. From September 1, 2008, until May 21, 2010, the Veteran had a TDIU based solely upon a single service-connected disability and had additional service-connected disability independently ratable at 60 percent. CONCLUSIONS OF LAW 1. From September 1, 2008, until May 21, 2010, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.341, 4.3, 4.16, 4.19. 2. From September 1, 2008, until May 21, 2010, the criteria for statutory housebound special monthly compensation have been met. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1975 to December 1978. This matter originally came before the Board of Veterans' Appeals (Board) from a July 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran testified at a March 2011 Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is associated with the claims file. This matter has previously been remanded multiple times by the Board for further development. Multiple Board decisions denying the Veteran's claims have been appealed to the United States Court of Appeals for Veteran Claims (CAVC). A Joint Motion for Partial Remand (JMPR) was granted multiple times, with the most recent JMPR taking place in December 2021. This matter is again before the Board. From September 1, 2008, until May 21, 2010, a TDIU is granted. The Veteran believes that from September 1, 2008, until May 21, 2010, a TDIU is warranted. The parties to the December 2021 JMPR agreed that a remand was needed to determine whether the Veteran's bilateral tinea pedis, alone warranted a TDIU from September 1, 2008, to May 21, 2010. See December 2021 CAVC Decision. A schedular total disability evaluation for compensation purposes may be assigned when the schedular rating is less than 100 percent, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For a TDIU, the issue is whether a veteran's service-connected disability or disabilities preclude the veteran from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a living wage). See Moore v. Derwinski, 1 Vet. App. 356 (1991). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the veteran. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As of September 1, 2008, the Veteran had a 60 percent disability rating for bilateral tinea pedis. Therefore, as of September 1, 2008, the Veteran met the percentage threshold requirements provided in 38 C.F.R. § 4.16(a) for consideration of entitlement to a schedular TDIU because the Veteran had one disability ratable at 60 percent or more. A schedular TDIU would be warranted from that date if the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected bilateral tinea pedis. After a review of the evidence of record, the Board resolves any doubt in the Veteran's favor and finds that the Veteran was unable to secure and follow a substantially gainful occupation due to his service-connected bilateral tinea pedis from September 1, 2008, to May 21, 2010. The Board notes that the Veteran has not worked since well prior to September 1, 2008. See May 2010 Medical Treatment Records. The Veteran had a high school education and had a history of employment in a grocery store, in construction, and as a baggage handler for an airline. See September 2017 VR&E-General. In early 2008, the Veteran reported that the tinea pedis had really gotten worse. Medication was not providing any relief. His feet were sore and would sweat more than before. His feet were very sore between the toes and would bleed at times. Between the toes, there was moisture and there was itching everywhere. See February 2008 Correspondence. In July 2008, the Veteran reported that the tinea pedis was infecting both feet internally, including under the toenails. The feet burned inside, itched, and were sore. See July 2008 Correspondence. Medical records from the first half of 2008 showed itching, moisture, and odor, among other things. There was pain on palpation. See September 2008 Medical Treatment Record. Medication was prescribed to try to help control sweating and odor. See May 2017 CAPRI. In November 2008, the Veteran reported that the tinea pedis caused itching, cracking, sweating, burning, hardened nails, soreness, and bad odor. The condition stopped him from doing daily house duties about 60 percent of the time. Flare-ups occurred two to three times monthly and lasted for two or three weeks. See December 2008 Statement in Support of Claim. Medical records showed that the feet itched. See November 2008 VA Examination. In December 2008, a statement from an individual who knew the Veteran noted that the Veteran had severe foot trouble due to tinea pedis. There was constant itching, soreness, and odor. The Veteran had asked the individual to help with his housework, laundry, and the caring of his children. The Veteran had difficulty standing and sometimes could barely walk. Medication did not seem to help. See December 2008 Buddy / Lay Statement. In January 2009, the Veteran reported that his time and activities with his children were often limited due to soreness and lesions on his feet. The Veteran often needed assistance with the general care of his home, including laundry, cleaning, and cooking. Standing and walking were very difficult. There was no relief. The condition was getting worse. See January 2009 Correspondence. Medical records from February 2009 showed that medication had not helped. See February 2009 Medical Treatment Record. In April 2009, the Veteran reported that the tinea pedis was severe and painful. There was toenail fungus, and his feet were sore, which kept him from most daily activities. The condition had worsened rapidly over the years. The toenails were hard, sore, and yellowish. Medication did not help. The Veteran's sore feet kept him from doing housework at times and necessitated the use of certain types of shoes in larger sizes. There was raw skin between the toes. See June 2008 Correspondence. In July 2009, the Veteran reported that tinea pedis played a role in his inability to work. See July 2009 VA 21-8940. Medical records from March 2010 showed that the tinea pedis was painful and caused the feet to be extremely dry. There was pain on palpation. Medication did not help. See April 2010 Medical Treatment Record. The Board finds the Veteran and others competent and credible to make the above lay statements. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board gives this evidence great probative value. The Board also finds the above medical evidence highly probative. The Board resolves all reasonable doubt in the Veteran's favor and finds that the evidence is at least in relative equipoise as to whether the Veteran's service-connected bilateral tinea pedis precluded him from engaging in substantially gainful employment from September 1, 2008, to May 21, 2010. Specifically, the Veteran's tinea pedis caused pain on palpation, soreness, itching, cracking, sweating, infections internally, burning, odor, and bleeding; kept the Veteran from being able to perform most daily activities; caused the regular inability to perform housework; caused difficulty with standing and walking; and caused the Veteran to sometimes be barely able to walk at all. These problems continued to worsen without relief. The Veteran's work history involved primarily manual and manufacturing work that required long periods of standing and/or walking. He did not have work experience in light physical or sedentary employment. Based on the symptoms of the Veteran's tinea pedis, the Veteran was unable to secure or follow substantially gainful employment due to the disability. Therefore, giving the Veteran the benefit of the doubt, from September 1, 2008, to May 21, 2010, a schedular TDIU for service-connected bilateral tinea pedis is warranted. From September 1, 2008, until May 21, 2010, statutory housebound special monthly compensation is granted. Statutory housebound special monthly compensation requires the Veteran to have a single service-connected disability rated at 100 percent and additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. See 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). A TDIU based on a single service-connected disability can count as a single service-connected disability rated at 100 percent. See Bradley v. Peake, 22 Vet. App. 280 (2008). Because the Veteran's service-connected bilateral tinea pedis warranted a TDIU, this is able to count as the single service-connected disability rated at 100 percent. From September 1, 2008, the Veteran had a 60 percent disability rating for a service-connected right knee disability, which was independently ratable. Therefore, from September 1, 2008, to May 21, 2010, statutory housebound special monthly compensation is granted. REASONS FOR REMAND An initial increased rating in excess of 10 percent prior to November 5, 2007, for bilateral tinea pedis is remanded. The Veteran believes that an initial increased rating in excess of 10 percent prior to November 5, 2007, for bilateral tinea pedis is warranted. The parties to the December 2021 JMPR agreed that a remand was needed for the tinea pedis issue prior to November 5, 2007, because a 2019 VA tinea pedis examination failed to substantially comply with the Board's July 2019 remand instructions. Specifically, the July 2019 remand instructions required an examination to identify all medications used for treatment of tinea pedis with onychomycosis from March 2003. However, the 2019 examination failed to identify any medications used prior to August 2007. See December 2021 CAVC Decision. Therefore, a remand is needed for a new VA examination that substantially complies with the Board's July 2019 remand instructions. The matter is REMANDED for the following action: 1. Provide the Veteran with an opportunity to identify any relevant outstanding private and/or VA treatment records for bilateral tinea pedis from March 2003 through November 2007. After obtaining any necessary authorizations from the Veteran, make all reasonable attempts to obtain the outstanding records in accordance with 38 C.F.R. § 3.159. 2. Schedule an appropriate VA retroactive opinion to determine the nature and severity of the Veteran's service-connected tinea pedis with onychomycosis from March 2003 until November 5, 2007. The opinion should provide a full description of the disability during that period and should report all signs and symptoms during that period necessary for evaluating the disability under the rating criteria. Following a review of the claims file and a copy of this Remand, the examiner is asked to provide the following: (A) Identify all medications used for treatment of the Veteran's tinea pedis with onychomycosis from March 2003 until November 5, 2007, and indicate whether each identified medication operates by affecting the body as a whole. This should at least include a conversation about tolnaftate cream 1% and desenex. (B) For each identified medication, indicate whether the treatment is more appropriately characterized as "topical therapy" or "systemic therapy" in accordance with prevailing medical understanding. (C) For each identified medication, indicate whether it is considered a corticosteroid or other immunosuppressive drug, and if so, whether it operates by affecting the body as a whole in treating the Veteran's disability. The examiner should also provide all periods of time from March 2003 until November 5, 2007, in which systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of six weeks or more, but not constantly and provide all periods of time from March 2003 until November 5, 2007, in which constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs were required. A complete rationale for all opinions offered should be provided. Address the Veteran's documented history and assertions. All necessary tests and studies should be conducted. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner should provide an explanation stating why. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is due to the limits of the medical community's medical knowledge or due to the limits of the examiner's medical knowledge. The Veteran and others are competent to attest to factual matters of which they have first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran and/or others, the examiner should provide a fully reasoned explanation. 3. Readjudicate the issue on appeal. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Dougan, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.